Argument preview: Checking up on gun buyers

Posted Tue, January 21st, 2014 8:10 pm by Lyle Denniston

At 11 a.m. on Wednesday, the Supreme Court will hear one hour of oral argument on the scope of the federal law that seeks to block “straw purchasers” of guns — that is, those who buy firearms for someone else without revealing that they have done so. Arguing for a convicted Virginia man in the case of Abramski v. United States will be Richard D. Dietz of the Winston-Salem, North Carolina, law firm of Kilpatrick Townsend & Stockton. Representing the federal government will be Joseph R. Palmore, an Assistant to the U.S. Solicitor General.

One of the strongest debates over guns in American society continues over the claim of Second Amendment protection for firearms owners. The Supreme Court, however, has resisted spelling out the actual reach of that right in the more than five years since it first ruled that the Amendment protects a personal right to have a gun, at least for self-defense. The Court, though, has been working on a series of side issues of gun control, and will do so again in the new case of Abramski v. United States.

Even though there is now a constitutional right to have a gun, there are categories of people who are not entitled to have a gun at all — such as convicted felons. Thus, licensed gun dealers need to know who is buying a gun in order to know whether they are eligible to have it.

To deal with that situation, Congress has made it a federal crime for anyone who attempts to buy a gun or ammunition from a licensed gun dealer to make any false statement that might deceive the dealer about whether such a sale would be legal. That is commonly known as the “straw purchaser” law, designed to discourage buyers from getting around bans on individuals’ access to a gun.

Federal officials have created a form — Form 4473 — that must be filed with the dealer at the time of a gun purchase. One of the questions seeks a “Yes” or “No” answer to this: “Are you the actual transferee/buyer of the firearm listed on this form?” The form notes that the individual is not the actual buyer if he is buying it for someone else. Thus, only actual buyers can purchase the specified gun.

The reach of that law and the government form’s coverage are now being tested in the Supreme Court by Bruce James Abramski, Jr., of Rocky Mount, Virginia — with support from the National Rifle Association and other gun owners’ groups.

A former state police officer, Abramski got caught up — mistakenly — in a federal investigation of a bank robbery in Rocky Mount in 2009, apparently because he was said to look like the bank robber, although the robber was masked. Abramski was ultimately cleared of any role in the bank robbery and of any federal charges related to the robbery.

However, during the federal investigation of Abramski, FBI agents searched his former residence in Rocky Mount. That search turned up a receipt that his uncle, Angel Alvarez, had written to him for buying a Glock 19 handgun.

Federal prosecutors later said that Abramski, at his uncle’s request, had bought the Glock from a dealer in Collinsville, Virginia, who catered to police officers seeking guns. He allegedly completed the government form, saying “yes” to the question about whether he was the actual buyer. His uncle had sent him a $400 check for the weapon, the government said. The gun was later transferred to his uncle, according to prosecutors, through a firearms dealer in Easton, Pennsylvania.

A grand jury accused Abramski of making a false statement about being the actual buyer of the Glock. Under a plea bargain, he agreed to plead guilty to two charges of making false statements, conditioning his plea on his ability to appeal to challenge the validity of the charges against him. He was placed on probation for five years. The U.S. Court of Appeals for the Fourth Circuit upheld his conviction.

Abramski’s lawyers took the case to the Supreme Court, raising two questions: whether it violates the “straw purchaser” law to buy a gun for someone else, when the other person is actually legally eligible to possess a gun; and whether gun dealers are required to keep in their records the information that a buyer intends to sell the gun to another legal buyer.

The petition argues that the federal appeals courts are split on whether a claim to be the actual buyer is a crime only if the purchase would actually be illegal, and thus there is no crime if both the buyer and the ultimate owner have a legal right to have a gun.

The Justice Department urged the Court not to hear the petition, even while conceding that there was some conflict in the lower courts on the scope of the “straw purchaser” law.

The Court on October 15 agreed to hear Abramski’s case, including both issues raised.

Abramski’s brief on the merits makes a simple legal argument: if both individuals involved in a gun purchase are eligible to have it, then it is not “material to the lawfulness” of the initial buyer’s purchase that the ultimate owner was not disclosed to the gun dealer. By this reading of the law, the gun dealer could have sold the Glock to Abramski even if Abramski had told the dealer that he was purchasing it for his uncle.

The brief, however, goes beyond that beginning approach, and argues that the entire “straw purchaser” doctrine is a “legal fiction” originally created by the courts to close what they perceived to be a loophole in federal gun control law. When Congress chose later to close what it perceived as the loophole, according to the Abramski filing, it did so without making it a crime to buy a gun with the intent to resell it to a legitimate buyer.

Congress’s ultimate goal, in the beginning in 1968 and when it acted in 1986 to close a perceived loophole, was to prevent guns from “falling into the hands of those not legally entitled to possess them,” as the brief put it. That goal is not served, it contended, when a gun would pass to an eligible buyer.

In addition, the Abramski brief challenged the legitimacy of the Form 4473, because it changes the meaning of “actual buyer” from what the underlying law specified. When Abramski bought the Glock, this argument said, he was, indeed, the actual buyer: he had a background check, and he took possession of the gun.

The brief went on to argue that, because of the flaw in the expanded “straw purchaser” doctrine according to the Justice Department, the law does not actually require gun dealers to keep on file the information about who an ultimate buyer of gun was.

The Justice Department’s brief on the merits contended that Congress wrote the gun buyer law to focus on “the substance of firearms transactions,” to serve the law’s goal of limiting sales by dealers to persons unknown to the dealer. In fact, the brief added, there is a specific provision in the law that bars dealers from selling guns to an absent buyer — a restriction that could be frustrated if agents could buy guns for someone else.

It makes no difference to the scope of this law, the government brief asserted, that Abramski’s uncle was eligible to have a gun. A sale, it added, occurs between a buyer and dealer, and is not, under the law, “some other hypothetical sale involving an absent party.”

Gun dealers are in the best position to make sure that the limits of federal gun control are satisfied, so they have to know the true identity of the buyer, the government argue. The law, besides seeking to keep guns out of the hands of people not legally eligible to have them, also is designed to help trace guns that turn up at crime scenes, the brief said.

The government also challenges Abramski’s interpretation of whether the dealer must keep on file the information about a false statement in a gun purchase.

Among amici, Abramski has the support of twenty-six states and the territory of Guam, and of a variety of gun owners’ associations, including the NRA. The government has the support of nine states and Washington, D.C., police organizations, and groups working to stop gun violence.

Analysis

The outcome of this case very likely will turn on the goal that the Court ultimately concludes was in Congress’s mind in passing the federal gun control law in 1968 and closing the purchaser loophole in 1986.

If the controlling aim was to keep guns out of the wrong hands, Abramski’s reading of history and of the text against that background may be compelling. Why would Congress be troubled if guns passed from legitimate buyers to legitimate owners?

But if Congress is perceived to have been setting up a scheme to monitor trafficking in guns, in general, the government would have a compelling case for its reading of the law so that authorities could follow the ownership paths that guns follow.

Abramski’s core strategy, of course, is to try to undermine the legitimacy of the “straw purchaser” doctrine, questioning its pedigree in judicial invention, and contesting the argument that Congress had ratified the judicial construction. There is a certain intuitive appeal, if one is sympathetic to gun ownership as a cultural phenomenon, to keeping the government from intruding upon the transfer of guns between those who have a legal right — and, now, a constitutional right, too — to possess them.

The government’s underlying strategy, in turn, is to quietly raise the specter of an undisciplined marketplace of gun trafficking that potentially runs the risk of having guns winding up in the possession of those who should not have them — and cannot legally have them. That has its own intuitive appeal.

One of the difficulties the Court will have in resolving the two competing visions of this controversy is that the text of the federal “straw purchaser” law probably can be read either way.

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